CITY OF NEW YORK LOSES SUMMARY JUDGMENT IN SLIP-AND-FALL ACCIDENT CASE, FOR FAILURE TO MEET ITS BURDEN AS MOVANT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Amendola v. City of New York

Date: Nov. 9, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

Comment: Today's blog post has the same "teaching point" as yesterday's: The party asking the court for summary judgment must make a sufficient showing on paper in the first instance.

City of New York loses summary judgment in this slip-and-fall accident case, for failure to meet its burden as the party making the motion. It hasn't lost the case--the case now goes to a jury.

In this type of accident case it is the movant's burden to show that it didn't create the dangerous condition; usually accomplished by offering evidence as to when the area was last cleaned or inspected before the accident victim's tumble. This wasn't done here, so this matter goes forward to trial, where the injured accident victim or the City of New York could win or could lose.

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RELATED POSTS:

SUPERMARKET DENIED SUMMARY JUDGMENT IN SLIP-AND-FALL ACCIDENT; IT FAILED TO MEET ITS LACK OF NOTICE BURDEN AS MOVANT (Posted by Queens injury attorney Gary E. Rosenberg on Dec 28, 2011)

SLIP-AND-FALL ACCIDENT IN LAUNDRY ROOM DISMISSED: NO "NOTICE" TO BUILDING OWNER & MANAGER; NO "DUTY OF CARE" OR "NEGLIGENT SUPERVISION" BY PARENTS (Posted By Queens injury attorney Gary E. Rosenberg on Dec 15, 2011)

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), dated August 6, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff allegedly slipped and fell on grease on the steps of a trailer which housed a workers' locker room. The trailer was located inside an enclosed sanitation garage. The defendant, City of New York, moved for summary judgment dismissing the complaint, contending that it did not create or have actual or constructive notice of the alleged hazardous condition. The Supreme Court granted the motion. We reverse.

A defendant who moves for summary judgment in a slip‑and‑fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Schiano v. Mijul, Inc., 79 A.D.3d 726, 912 N.Y.S.2d 134; Walsh v. Super Value, Inc., 76 A.D.3d 371, 904 N.Y.S.2d 121; Gambino v. City of New York, 60 A.D.3d 627, 877 N.Y.S.2d 91). "To meet its initial burden on the issue of ... constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598-599, 869 N.Y.S.2d 222; see Mei Xiao Guo v. Quong Big Realty Corp., 81 A.D.3d 610, 916 N.Y.S.2d 155). Additionally, a defendant who has actual knowledge of an ongoing and recurring dangerous condition may be charged with constructive notice of each specific reoccurrence of the condition (see Milano v. Staten Is. Univ. Hosp., 73 A.D.3d 1141, 903 N.Y.S.2d 78; Kohout v. Molloy Coll., 61 A.D.3d 640, 876 N.Y.S.2d 505; Brown v. Linden Plaza Hous. Co., Inc., 36 A.D.3d 742, 829 N.Y.S.2d 571; Roussos v. Ciccotto, 15 A.D.3d 641, 792 N.Y.S.2d 501). A general awareness of a condition, however, is insufficient to constitute constructive notice of the specific condition that caused the plaintiff to fall (see Kostic v. Ascent Media Group, LLC, 79 A.D.3d 818, 912 N.Y.S.2d 445; Mauge v. Barrow St. Ale House, 70 A.D.3d 1016, 895 N.Y.S.2d 499; Panetta v. Phoenix Beverages, Inc., 29 A.D.3d 659, 816 N.Y.S.2d 122). A defendant cannot satisfy its initial burden as the movant merely by pointing to gaps in the plaintiff's case (see McPhaul v. Mutual of Am. Life Ins. Co., 81 A.D.3d 609, 915 N.Y.S.2d 870; Davranov v. 470 Realty Assoc., LLC, 79 A.D.3d 697, 911 N.Y.S.2d 912; Edwards v. Great Atl. & Pac. Tea Co., Inc., 71 A.D.3d 721, 895 N.Y.S.2d 723).

Here, the defendant failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law and, therefore, the Supreme Court should have denied its motion for summary judgment dismissing the complaint. Given the location of the accident site, the defendant failed to establish, prima facie, that the greasy substance was not created by its employees (see Brown v. Outback Steakhouse, 39 A.D.3d 450, 833 N.Y.S.2d 222; Kelly v. Media Serv. Corp., 304 A.D.2d 717, 757 N.Y.S.2d 781; Hopkins v. Statewide Indus. Catering Group, 272 A.D.2d 577, 710 N.Y.S.2d 81). The defendant also failed to submit any evidence as to when the subject staircase was last cleaned or inspected. Hence, it failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition (see Gray v. Lifetitz, 83 A.D.3d 780, 920 N.Y.S.2d 693; Alston v. Starrett City Assoc., 72 A.D.3d 711, 898 N.Y.S.2d 859; Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 892 N.Y.S.2d 181). Moreover, the defendant's submissions failed to eliminate all triable issues of fact as to whether it had actual notice of a reoccurring hazardous condition which routinely went unaddressed (see Milano v. Staten Is. Univ. Hosp., 73 A.D.3d 1141, 903 N.Y.S.2d 78; Kohout v. Molloy Coll., 61 A.D.3d 640, 876 N.Y.S.2d 505; Brown v. Linden Plaza Hous. Co., Inc., 36 A.D.3d 742, 829 N.Y.S.2d 571; Roussos v. Ciccotto, 15 A.D.3d 641, 792 N.Y.S.2d 501). Since the defendant failed to meet its initial burden as the movant, we need not review the sufficiency of the plaintiff's opposition papers (see Britto v. Great Atl. & Pac. Tea Co., Inc., 21 A.D.3d 436, 799 N.Y.S.2d 828; Joachim v. 1824 Church Ave., Inc., 12 A.D.3d 409, 784 N.Y.S.2d 157).

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MORE RELATED POSTS:

NO "NOTICE" OF RAISED RUG ON FLOOR; CASE DISMISSED ON DEFENSE SUMMARY JUDGMENT MOTION (Posted by Queens injury attorney Gary E. Rosenberg on Nov 5, 2011)

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